Bonus 102: The Brief in Opposition

Perhaps the hardest Supreme Court brief to write is the "BIO"—in which the goal is to make a newly filed request for the justices to take up a case sound as un-appealing as possible

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

My prompt for today’s bonus post was the Court’s denial of certiorari on Monday in a case that largely flew under the radar—Moylan v. Leon Guerrero, in which the petition asked the justices to decide whether the Guam Supreme Court had the authority to resolve a dispute between Guam’s Attorney General and its Governor over the fate of Guam abortion law after the U.S. Supreme Court’s decision in Dobbs.¹ I was co-counsel to Governor Leon Guerrero in opposing certiorari,² and thought it might be a good excuse to reflect in more general terms on some of the broader challenges of what, to me, is the most unique Supreme Court brief: the “brief in opposition” (or “BIO”).

As I suggest in the post that follows, BIOs not only bring with them a host of unique substantive and tactical issues from the perspective of litigation strategy, but they also underscore, in more general terms, some of the myriad ways in which the Supreme Court’s entire decisionmaking process invites different forms of complex strategic and tactical behavior by litigants and the Court itself—almost all of which happens out of public sight. It’s inside baseball all the way down—which may make for a wonky newsletter post, but can have lots of significant ramifications both inside and outside the Court.

Among the 10 different colors for the covers of Supreme Court briefs, BIOs come in orange (Let’s Go Mets?).

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